The ADA signifies the adoption of a public policy committed to the removal of a broad range of impediments to the integration of people with disabilities into society.
Historically, societies have frequently misconstrued, overreacted to, or ignored differences in individual mental and physical abilities. Recorded instances of ridicule, torture, imprisonment and execution of people with disabilities are not uncommon. (1) One commentator stated that "Our society is still infected by an insidious, now almost subconscious assumption that people with disabilities are less than fully human, and therefore are not fully eligible for the opportunities, services and support systems which are available to other people as a matter of right." (2)
In colonial times, it was considered the family's responsibility to care for individuals born with disabilities or those who became disabled later through illness, injury or other causes. According to a leading authority, "Fear, shame and lack of understanding led some families to hide or disown their disabled members or allow them to die." A system of "farming out" those individuals whose families were unable or uwilling to support them to people who received public assistance to provide for their room, board, and care survived until the latter part of the 19th century. Public concern over abuses--including recorded cases in which care providers collected their fees and then locked people with disabilities in attics to starve or freeze to death--eventually led to a change in focus. (3)
A shift towards more organized, institutionalized care began in the 1820's. The term "warehousing", sometimes used to describe this type of treatment, refers to the fact that most such care was custodial in nature and resulted from a view of people with disabilities as defective, incompetent, and in need of special institutions, care, and services which isolated them from society in order to survive. Later there developed specialized institutions for individuals with particular types of disabilities. These also were overwhelmingly custodial in nature. This pattern of institutionalization eventually has fallen into disrepute for two principal reasons. First, individuals living in these institutions were subjected to abuse, including neglect on a massive scale. (4)
Second, and even more fundamentally, it was not the purpose of these institutions to promote the productivity or independence of those residing in them because the prevailing concept of disability at the time assumed that to attempt to do so was futile. The protective isolation model pre-supposed that people with disabilities needed to be protected from the hardships of society. The loss to these individuals and to society of their lost freedom and contributions cannot be calculated. It undoubtedly has been the case that many individuals who could have contributed to society and lived productively have been isolated and segregated. (5)
In the 1920's, the return of veterans of the first World War and an increase in industrial accidents meant there were large numbers of people with disabilities for whom rehabilitation and a return to work began to be considered as appropriate goals. Federal legislation created the forerunner to the rehabilitation structure in the United States, now embodied in the provisions of the Rehabilitation Act of 1973. (6)
The period from 1920 to 1960 was marked by the development of welfare and entitlement programs as an alternative to total care institutions. The return of WWII and Korean War veterans led to an increase in the range of available rehabilitation services. Developments in medical technology increased the number of individuals surviving disease and accidents and significantly increased the ability of people with disabilities to be more physically mobile. The rehabilitation profession expanded greatly. Work and recreational programs developed in larger numbers, although most organizations sponsoring them were run by nondisabled people and the programs were usually sheltered and segregated. Many of these organizations advocated for legislative and policy changes which led to the provision of some services for people with disabilities. The "charity" approach to disability, characterized by efforts to "care for" people with disabilities, was evidenced among those who wanted to "help the handicapped". One observer has characterized this period as one of "an increasing humanization of certain classes of disabled people based on qualities of 'deservedness', 'normalcy' and 'employability' and a move from total societal indifference to a recognition that the remaining 'unfortunates' must receive some level of minimal care." (7)
The disability rights movement has achieved a sizable presence only over the course of the past twenty years. In contrast to earlier conceptions of disability, it presupposes the human potential of people with disablities, maintains that people with disabilities have the competence and should have the right to govern their lives, and holds that the proper goal of public policy is the creation of meaningful equal opportunity, facilitating the growth and integration of people with disabilities into society. And it maintains that the elimination of a multitude of attitudinal, communication, transportation, policy and physical barriers based on erroneous assumptions about disability will result in a substantial enhancement of the productive integration of people with disabilities into our society.
Influenced by the goals, rhetoric and tactics of the civil rights movement, the modern disability rights movement has been marked by the increasing prominence of people with disabilities themselves as its leaders and spokespersons and the emergence of the first national cross-disability organization in the 1970's. It rejects paternalistic treatment which impedes the realization of the full productive potential of people with disabilities.
Congress since 1968 has passed a series of laws focused upon the goal of integration through the provision of meaningful equal opportunity. Some of these statutes provided access to a limited class of public facilities (8) and public transportation (9). The Rehabilitation Act of 1973, in addition to establishing comprehensive programs of vocational rehabilitation and independent living, also created a federal Board to coordinate and monitor access to public buildings and transportation, prohibited discrimination in employment by the federal government's Executive Branch, and required affirmative action in hiring people with disabilities by federal agencies and contractors. The 1973 Act also included a mandate prohibiting discrimination against people with disabilities by recipients of federal assistance. This last provision, section 504 of the Rehabilitation Act, has served as a model for many of the ADA's provisions. (10) The Education of All Handicapped Children Act of 1974 mandated an end to separate and unequal educational opportunites by requiring that all children with disabilities be entitled to a free, appropriate public education. (11) Legislation was also passed establishing a bill of rights for people with developmental disabilities, to promote the integration of such individuals into the community. (12) The Fair Housing Act of 1968 was amended in 1988 to add protection for people with disabilities in this crucial area. (13)
In the employment area, a number of companies, partly in response to federal mandates, have found that hiring people with disabilities has helped improve their performance. Their spokespersons have clearly indicated that they do so not for altruistic reasons but in order to strengthen their workforce and the health of their enterprises. (14) Business leaders have spoken out in favor of "full participation" for citizens with disabilities, arguing that business has an economic stake in hiring individuals with disabilities and in so doing taking advantage of the pool of potential talent they represent. (15)
Notwithstanding these significant developments, the overall status of people with disabilities in our society has remained dismal. As President Bush said, "People with disabilities are the poorest, least educated, and largest minority in America." (16) Two thirds of Americans with disabilities between the ages of 16 and 64 are not working at all; yet a large majority of those not working say they want to work. (17)
It was in this context that the National Council on Disability, an independent federal agency, issued in 1986 Toward Independence, a report which examined incentives and disincentives in federal laws towards increasing the independence and full integration of people with disabilities into our society. Among the disincentives to independence it identified were the large remaining gaps in our nation's civil rights coverage for people with disabilities. A principal conclusion of the report was to recommend the adoption of comprehensive civil rights legislation which became the ADA. (18)
First introduced in the 100th Congress, the ADA bans discrimination in the areas of employment, public accommodations, public services, transportation and telcommunications. President Bush signed the ADA into law on July 26, 1990. Final regulations for Title I, the employment provisions of ADA, were issued on July 26, 1991 by the Equal Employment Opportunity Commission. The Department of Justice on the same day issued final regulations for Titles II (public services) and III (public accommodations).
1. See United States Commission on Civil Rights, Accommodating the Spectrum of Individual Abilities (Washington, D.C., 1983), note 5 at 18.
2. Justin Dart, Jr., "ADA: Landmark Declaration of Equality," Worklife (Washington, D.C.: President's Committee on Employment of People with Disabilities), Fall, 1990, p. 1.
3. Accommodating the Spectrum, supra, p. 18.
4. Id., pp. 19-20.
5. Id., p. 19.
6. See R. Funk, "Images of the Disabled", in Images of the Disabled, Disabling Images, ed. Alan Gartner and Tom Joe (New York: Praeger, 1987), pp. 9-10.
7. Id., pp. 10-11.
8. Architectural Barriers Act of 1968, 42 U.S.C. 4151 et seq.
9. Urban Mass Transportation Act of 1964, as amended, 49 U.S.C. 1612; Federal Aid Highway Act of 1973, 29 U.S.C. 142.
10. Rehabilitation Act of 1973, as amended, 29 U.S.C. 701 et seq.
11. Education for All Handicapped Children Act, as amended, 20 U.S.C. 1401 et seq.
12. Developmentally Disabled Assistance and Bill of Rights Act of 1975, as amended, 42 U.S.C. 6001 et seq.
13. Fair Housing Amendments of 1988, Pub. L. No. 100-430.
14. Mark Donovan, as quoted in House Committee on Education and Labor Report, House Report No. 101-485, part 2, at p. 46. (1989)
15. National Council on the Handicapped, Toward Independence (Washington, D.C., 1986), p. 13; Robert Mosbacher, Jr., as quoted in House Committee on Education and Labor Report, House Report No. 101-485, part 2, at p. 45. (1989)
16. Statement by Vice President George Bush on Disabled Americans, March 31, 1988, p. 2.
17. House Committee on Education and Labor Report, House Report No. 101-485, part 2, p. 32. (1989)
18. Toward Independence, supra.